2012 Conference

China and Inner Asia Session 51

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The Courtroom of History: Truth, Justice, and Narrative in Modern China

Organizer and Chair: Alexander C. Cook, University of California, Berkeley, USA

Sometimes history is written in the courtroom. The possibilities and limitations of using law to interpret the past are shown by the legal responses to two traumatic periods in modern Chinese history: the War of Resistance against Japan (1937-1945) and the Great Proletarian Cultural Revolution (1966-1976). The united front of Chinese Nationalists and Communists emerged victorious from WWII, but defeat of the common enemy returned China to the brink of civil war. Both regimes convened war crimes tribunals to address the legacies of war, but their trials forged different histories directed towards different goals in the present. The Nationalist trials—including cases of crimes committed by foreign nationals, sometimes against foreign nationals, and in colonial or semi-colonial territories like Hong Kong and Shanghai—firmly reasserted China’s inviolable national sovereignty, which had been attenuated for more than a century. The Communist trials against Japanese war criminals and Chinese traitors (hanjian), on the other hand, forged national identity around the historic struggle against domestic capitalism and its imperialist brethren. This struggle culminated in the Cultural Revolution, and its abrupt end meant a reversal of verdicts on Mao’s last decade. The spectacular legal trial of deposed radicals (including the Gang of Four) laid a foundation for the party’s subsequent resolution on history—framed by an analogy between positive laws and the laws of history. Against the elegance of this heuristic device, the post-Mao state faced the messy resolution of millions of “unjust, false, and wrong cases,” each its own history to be rewritten.

Trials of Sovereignty: Chinese Nationalist Trials of Japanese War Criminals, 1946-1949
Chang Cai, Harvard University, USA

Nationalist China’s program of war crimes tribunals, which tried more than six hundred cases in at least ten locations, exemplifies national application of an emerging body of international law that was being created in the post-WWII period. Nationally-constituted trials against the Axis powers, such as those conducted by British, French, Australian, and Chinese authorities, provoked fascinating debates over the nature of criminal responsibility for war crimes. Though overshadowed by international cases from the Nuremberg and Tokyo tribunals, these less famous trials were equally serious exercises in international humanitarian law. This paper uses archival sources to analyze three of the better-known Chinese cases: the Shanghai-based trial of internee camp managers Shitoshi Honda and Toshi Odera; the Nanjing-based trial of Isogai Rensuke, former governor of Hong Kong; and the Nanjing-based trial of Hisao Tani, a co-perpetrator in the Nanjing massacre. As these cases illustrate, war crimes trials against the Japanese were emblematic of the Nationalists’ attempt to proclaim a new order after a decade of Japanese occupation. Besides addressing the violent abuses of the Japanese occupation, the Nationalist courts also used the trials to assert and demonstrate to the Western powers the full sovereignty of the Chinese state at the end of WWII.

PRC Mass Trials of Hanjian and War Criminals in the Early 1950s
Klaus Muehlhahn, Free University, Germany

If nations are bound together by narratives, then the courtroom drama can play a powerful role for institutionalizing collective myths. Following shortly upon the founding the PRC in 1949, mass trials of traitors and war criminals were powerful tools to solidify elite-constructed narratives about the recent past and to build a Communist national identity based on antagonism against capitalist and imperialist forces. The emerging official historical account of the Second Sino-Japanese War (“The Great Chinese War of Resistance against Japanese Aggression”) endorsed self-glorifying myths of resistance that praised the role of the CCP in attaining national liberation. The trials became rituals for discrediting alternative narratives of war and resistance and reaffirming a unified and linear one, while erasing the memory of the uncertainties on how to respond to foreign occupation that had characterized the early stages of the war and civil war. To this end, hybrid courts or tribunals were organized that conducted the trials in public, often before large crowds. This paper will explore several mass trials in the early 1950’s to demonstrate how judicial process became the main forum for negotiating the politics of historical narratives. The CCP regime, not unlike the Bolsheviks’, was an example of a “theatricalized state” in which public drama and the administration of justice were merged to extend the powers of the regime in its struggle against perceived enemies.

China’s Cultural Revolution: Violation of Law, or of the Laws of History?
Alexander C. Cook, University of California, Berkeley, USA

China’s “decade of disaster” created a dual imperative: legal accountability for, and historical explanation of, the violent past. The PRC’s spectacular public trial of deposed radicals (including the Gang of Four) and the CCP’s official Resolution on Certain Questions in the History of the Party since the Founding of the PRC are both well known, but the connection between them is not. Two complementary verdicts drew a crucial distinction between crimes (violations of law) and errors (violations of the laws of history). This distinction allowed the party resolution to separate the tragically mistaken Mao from the opportunistic criminals who took advantage of his mistakes, and to separate the scientifically correct ideology of Mao Zedong Thought from its fallible human embodiment. In this way, socialist rule of law laid the theoretical foundation by which to repudiate socialist rule of man, replacing charismatic autocracy with bureaucratic technocracy. Thus did the court of law and the courtroom of history propose to rescue the legacy of the Great Helmsman, right the ship of socialism, and steer the nation back on its course to modernization.

Authoritarian Adjudication: Redressing the “Unjust, False, and Wrong Cases,” 1978-1983
Daniel Leese, University of Freiburg, Germany

In the wake of the “third wave of democratization” and the fall of communism in Eastern Europe, scholarly attention has turned to redressing past injustices committed during former socialist dictatorships. Yet studies of “transitional” or “post-conflict” justice usually have been tied to a normative framework of democratization. Regime-internal transitions, such as within the People’s Republic of China after 1978, are therefore commonly excluded. While the famous trial of the “Gang of Four” in 1980-1981 and the personal fate of several Chinese Communist Party leaders during these years are at least well-documented, basically nothing is known about the roughly three million case revisions of ordinary PRC citizens conducted between late 1978 and early 1983. This paper mines local level archives from Beijing, Guangxi and Inner Mongolia to offer insights about the institutional setting, scope, and standards of adjudication during the revision of so-called “unjust, false, and wrong verdicts” (yuanjiacuo’an) after the Cultural Revolution. The files reveal changes within judicial practice and official narratives, and also allow for rare glimpses into how crime was constructed during the late Maoist era. The revision of the “unjust, false, and wrong verdicts” can legitimately be described as a limited form of post-conflict justice that effectively coped with issues of financial compensation, rehabilitation, and verdict reversal based on former notions of class justice. Despite the accompanying rhetoric of democratization and rule of law, however, party politics retained the ultimate importance and thus inhibited a wider debate about the nature and scope of Maoist era injustices.